concurring.
I write in concurrence to emphasize the unique facts of this case and to point out that our holding makes it essential for prospective purchasers of real estate to protect themselves by not only investigating the chain of title to the parcel they plan to purchase, but also to satisfy themselves that any restrictive covenants that are a part of their chain of title adequately protect them as owners in future years.
One of the hallmarks of modern life is the growing size and complexity of residential subdivisions. These subdivisions are developed with an ever-increasing number of common improvements pursuant to plats that subdivide the real estate *160into smaller and smaller parcels containing larger and larger homes. Friction between neighbors that could be tolerated on parcels of two-thirds acre or more becomes intolerable when parcel size is reduced to one-fourth acre and less.
Understandably, developers want to retain control over their developments for long periods of time in order to assure their commercial success through the continued sale of parcels and construction of homes that preferably increase, but at least maintain, the value of the previously constructed homes in the subdivision. The method used to retain this control is the imposition of uniform restrictive covenants on platted parcels. While such restrictive covenants generally benefit original and subsequent purchasers by clearly defining owner responsibilities and rights, the duration of developer control of any homeowners association and/or architectural control committee created by the restrictive covenants is at least as important as the responsibilities and rights specifically defined or omitted in those covenants.
Here, appellants clearly knew that the common sidewalk to the park at the back of the development was platted to run along the side of their lot in a ten-foot easement shared with their neighboring lot. The plat also disclosed that a similar easement began again at the back of their lot, but on the opposite side from, and parallel to the pedestrian easement they shared with their neighbor. Somehow, the easements had to be joined to accomplish the underlying purpose of providing pedestrian access to the park which was a common improvement for the benefit of all residents. Whether appellants consciously took the risk involved or just were oblivious to it is not a part of our record.
In the restrictive covenants of some developments, creation of easements by individual homeowners is prohibited without prior approval of the architectural control committee or a majority of other homeowners. There is no such limitation contained in the restrictive covenants at issue. More importantly, such a prohibition would have been to no avail here because these restrictive covenants allow the developer to retain control of the architectural control committee for as long as the developer desires. In addition, under these (and most) restrictive covenants, the developer retains greater rights regarding the parcels that remain unsold to private individuals than any homeowner has regarding his/her own lot. There simply was no way for the appellants to prevent the construction of the connecting sidewalk under the unique facts and circumstances at issue.
I strongly agree that appellants' reliance on Wischmeyer is misplaced. The Wis-chmeyer court was called upon to consider the effect of mistaken conveyance without reference to restrictive covenants, not an omission from a plat which was logically suggested, and not the common law of easements. In addition, there is a good argument to be made that the "holding" of the Wischmeyer court concerning the absent restrictive covenants is really dicta, in that the court refused to allow interested subsequent homeowners to enforce the covenants under the doctrine of laches.
I very much dislike the "all or nothing" remedy the law requires regarding something as important as one's enjoyment of one's home. But I must regretfully coneur in what the law requires under these facts and circumstances.